Kerre Woodham: Ghastly defence finally gone

Under urgency last night, Parliament approved the abolition of the defence of provocation from the law books.

For those of us who remember the macabre and ghastly performance of Clayton Weatherston, who used the courtroom as a stage to drive the knife into his victim one last time with his attempt to assassinate her character, this seems like a very good move indeed.

The gay community should welcome the news as well, given that men have been able to walk free from the courts despite committing appalling acts of violence simply because, they claim, their victims came on to them.

Provocation has allowed killers to take the most dreadful liberties: for jealous spouses to claim their manhood was threatened by their wives' alleged infidelity; for bits of rough to claim their sexuality was impugned by being pawed by poofs.

Now, any mitigation will be offered up at sentencing and it will be for the judge to decide if the circumstances warrant a reduction in the length of time served in jail.

On the face of it, this should work well. But the recent case of Anthony Sherna in Victoria is a tragic one and gives pause for thought.

For 18 years, Sherna's de facto wife abused and controlled him. He worked two jobs, she had none, but she was the one who controlled the money.

He was allowed 12 cigarettes a day, told what to wear daily and was barred from certain rooms of the house. He was told he was too smelly to use the toilet - he had to use the one at work - and she threatened that if he ever told anyone what was going on, her brother and her ex-husband would deal to him and his family.

His life was hell. One night, when his wife came in, shrieking and yelling, Sherna snapped.

As the drunk woman abused him over a phone bill he grabbed the cord of his dressing gown and strangled her. He told the jury he'd just snapped and just wanted an end to the life he was living.

On the face of it, you'd think he had good cause to plead provocation under battered spouse syndrome.

Certainly you'd imagine that a woman who'd suffered that sort of abuse would get some leniency. But Victoria changed its homicide laws in 2005 and, like New Zealand, did away with the partial excuse of provocation.

The reason for that was much the same as ours - provocation was allowing killers to walk free.

The Victorian courts introduced instead "defensive homicide" which was conceived to allow for killings in the context of sustained domestic violence.

Sherna's case should surely come under that category but although the court accepted he was guilty of manslaughter, not murder, he was sentenced to 14 years in prison and has to serve a minimum of 10.

This seems like a gross miscarriage of justice and you have to ask whether courts will ever be places where justice is served, or whether they will continue to be buildings where law is administered.